Long v. Roberts

FILED
United States Court of Appeals
Tenth Circuit
May 8, 2008
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
MARLIN D. LONG,
Petitioner-Appellant,
v.
No. 07-3326
(D.C. Nos. 07-CV-3009-MLB and
RAY ROBERTS, Warden, El Dorado
07-CV-3044-MLB)
Correctional Facility
(D. Kan.)
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.
Marlin Long, a Kansas prisoner proceeding pro se, requests a certificate of
appealability (COA) as a prerequisite to his appeal from the district court’s denial
of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See 28
U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from a final order
disposing of a § 2254 petition unless the petitioner first obtains a COA). Long
also moves to proceed in forma pauperis. We grant Long’s request to proceed in
*
This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
forma pauperis and deny Long’s request for a COA because we conclude that he
has not made the requisite showing. See id. § 2253(c)(2) (“A certificate of
appealability may issue under paragraph (1) only if the applicant has made a
substantial showing of the denial of a constitutional right.”).
Long was convicted of five counts of rape, two counts of aggravated
sodomy, and aggravated burglary in Kansas state court. The court sentenced
Long to 1,487 months. Long, proceeding pro se, filed his § 2254 petition and
sought relief on eleven issues. After considering Long’s arguments, the district
court denied relief on all eleven issues and denied Long’s request for a COA.
Long now seeks a COA for four of the issues raised to the district court: (1) his
conviction on one count violated his Fifth Amendment right against double
jeopardy; (2) his conviction on five counts of rape for a single event also violates
the Double Jeopardy Clause of the Fifth Amendment; (3) his trial and appellate
counsel provided ineffective assistance; and (4) the state court improperly failed
to suppress evidence obtained in violation of the Fourth Amendment. We
consider each of these issues in turn.
As noted, we may only grant a request for a COA if the petitioner has
“made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). In other words, Long must show “that reasonable jurists could
debate whether . . . the petition should have been resolved in a different manner
or that the issues presented were adequate to deserve encouragement to proceed
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further.” Fleming v. Evans, 481 F.3d 1249, 1254 (10th Cir. 2007) (quoting Slack
v. McDaniel, 529 U.S. 473, 484 (2000)).
Long first asserts that his constitutional rights were violated because he
was convicted of a crime for which he had previously been acquitted. During
Long’s first trial, the jury was unable to reach a verdict; however, at one point
during the jury deliberations, the jury sent the judge a note, which indicated the
current votes for the eight counts Long faced. The vote for Count 3 was “0-12.”
The judge then questioned the jury in open court, and the jury foreman indicated
that the jury was not unanimous on that count, but that instead, it represented a
tentative compromise among the jurors. Long then requested that the jury
continue to deliberate. Ultimately, the jury was not able to reach a unanimous
verdict on any count and the judge declared a mistrial. Long argues that his Fifth
Amendment rights have been violated because, at his second trial, he was
convicted of Count 3 in spite of his prior acquittal on that count.
The protections of the Double Jeopardy Clause do not apply when a judge
declares a mistrial due to a “hung jury” because the mistrial does not terminate
the original jeopardy the defendant faces. Richardson v. United States, 468 U.S.
317, 325 (1984). To bar a second trial, a defendant must receive a “valid and
final judgment” of acquittal, Ashe v. Swenson, 397 U.S. 436, 443 (1970),
rendered by a unanimous jury, United States v. Merlino, 310 F.3d 137, 142 (3d
Cir. 2002). In the instant case, the preliminary vote on Count 3 does not
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constitute the type of final judgment necessary to terminate jeopardy. Instead, the
vote was a snapshot of the jury’s deliberations, which the jury specifically stated
did not indicate that they had reached a unanimous verdict. Accordingly, Long
has not demonstrated the denial of a constitutional right, and thus, we cannot
grant a COA on this issue.
Long also asserts that he is entitled to a COA because his five rape
convictions for a single event violate the Double Jeopardy Clause. The Fifth
Amendment protects against multiple prosecutions for the same conduct. See,
e.g., Thomas v. Kerby, 44 F.3d 884, 887 (10th Cir. 1995). We evaluate this type
of multiple-punishment claim by determining whether the state legislature
“provided for multiple offenses under the circumstances.” Id. Thus, “[i]n a
habeas corpus proceeding under section 2254, a federal court should defer to a
state court’s interpretation of state law in determining whether an incident
constitutes one or more than one offense for double jeopardy purposes.”
Mansfield v. Champion, 992 F.2d 1098, 1100 (10th Cir. 1993). In the instant
case, given the facts, the Kansas Court of Appeals determined that the Kansas
statute permitted a conviction for multiple offenses. State v. Long, 993 P.2d
1237, 1241 (Kan. Ct. App. 1999). We defer to this state court decision on state
law, and therefore conclude that Long has not demonstrated a denial of his Fifth
Amendment rights.
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Long also seeks a COA for his claim that his trial and appellate counsel
provided ineffective assistance. The standard analysis for an ineffective
assistance of counsel claim is familiar and well established. To prevail, a
petitioner must demonstrate: (i) “that his attorney’s performance was deficient, as
measured against an objective standard of reasonableness,” and (ii) that there is a
“reasonable probability that, but for his counsel’s deficient performance, the
result of the proceeding would have been different.” Mayes v. Gibson, 210 F.3d
1284, 1288 (10th Cir. 2000). When applying this test, we begin with the strong
presumption that the petitioner’s counsel acted reasonably. See id. (“[T]he
Supreme Court admonishes us to free our inquiry from ‘the distorting effects of
hindsight’ by indulging in a strong presumption [that] counsel acted reasonably.”
(quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)).
Long first argues that his counsel was ineffective because he failed to call
an expert witness to rebut the state’s witnesses’ testimony regarding the victim’s
injuries incurred during the sexual assault. Although Long suggests that an expert
might testify that the injuries at issue could have been incurred during consensual
sexual activity, nothing in the record supports this assertion. Thus, Long’s
argument founders on the first prong of the Strickland test because he made no
showing in the record regarding the content of the potential expert witness
testimony. See Cummings v. Sirmons, 506 F.3d 1211, 1233 (10th Cir. 2007)
(holding that a petitioner’s ineffective assistance claim failed to satisfy
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Strickland’s first prong because nothing demonstrated the content of a potential
expert’s testimony). Without some indication of the content of the potential
expert witness testimony, we cannot conclude that Long’s counsel provided
ineffective assistance.
Long also contends that his counsel provided ineffective assistance because
he failed to effectively cross-examine some of the state’s witnesses. This
argument similarly fails to satisfy Strickland’s first prong. We have previously
concluded that counsel’s cross-examination method is a matter of trial strategy
subject to the strong presumption that the counsel acted reasonably. Richie v.
Mullin, 417 F.3d 1117, 1124 (10th Cir. 2005). In the instant case, nothing in the
record rebuts this presumption. Long surely would have preferred the state’s
witnesses to testify on cross-examination that the victim’s injuries were consistent
with consensual sexual activity; however, the failure to elicit such testimony does
not indicate that Long’s counsel acted unreasonably.
Long also asserts that his counsel was deficient because he failed to make
several motions and objections during the trial. We have reviewed each potential
motion and objection, and conclude that Long failed to make a substantial
showing that his constitutional rights were violated for substantially the reasons
stated by the Kansas Court of Appeals. Therefore, for the reasons stated above,
we conclude that we cannot grant Long a COA on his ineffective assistance of
counsel claim.
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Long’s final argument rests on the Fourth Amendment. He contends that
the state court wrongly failed to suppress evidence discovered after the police
entered his friend’s apartment and discovered Long inside. This argument fails
because Long does not have standing to challenge the police search of his friend’s
apartment. 1 To have standing, an individual must satisfy a two-part test: (i)
“whether the individual, by his conduct has exhibited an actual (subjective)
expectation of privacy,” and (ii) “whether the individual’s subjective expectation
of privacy is one that society is prepared to recognize as reasonable.” United
States v. Jones, 213 F.3d 1253, 1260 (10th Cir. 2000) (internal quotation marks
omitted) (quoting United States v. Dodds, 946 F.2d 726, 728 (10th Cir. 1991)).
In the instant case, Long’s friend had previously consented to Long
spending the night at his apartment; however, the friend left the bar where he and
Long had been drinking and went home to go to bed. Long and his friend did not
make plans regarding where Long would be spending the night, and the friend
testified that if Long planned to stay at his apartment, he expected him to knock
1
We also note, however, that Stone v. Powell bars Long’s Fourth
Amendment challenge. See 428 U.S. 465, 496 (1976) (“[W]e conclude that where
the State has provided an opportunity for full and fair litigation of a Fourth
Amendment Claim, a state prisoner may not be granted federal habeas corpus
relief on the ground that evidence obtained in an unconstitutional search or
seizure was introduced at his trial.” (footnote omitted)). Thus, even if Long had
standing to challenge the search, we could not consider that challenge because he
had a full and fair opportunity to challenge the search in Kansas state court. See
Long, 993 P.2d at 1241–43.
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on the door. Instead, upon finding the door to the apartment locked, Long broke
down the door.
In general, overnight guests have a legitimate and reasonable expectation of
privacy in their host’s home. See, e.g., Minnesota v. Olson, 495 U.S. 91, 99–100
(1990). The Fourth Amendment, however, does not protect an individual’s
subjective expectation of privacy in a home he has entered without consent. See
Jones, 213 F.3d at 1260 (holding that an individual staying at a condominium
without the owner’s consent did not have an expectation of privacy that society
was prepared to accept as reasonable). Thus, assuming Long had a subjective
expectation of privacy, he lacks standing to challenge the search because society
is not prepared to protect that expectation.
For the reasons stated above, we conclude that Long has not substantially
demonstrated that the proceedings in Kansas state court violated his constitutional
rights. Accordingly, we DENY each of Long’s requests for a COA, DISMISS this
appeal, and GRANT Long’s request to proceed in forma pauperis.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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